as an amateur supreme court watcher, i closely follow cases the big nine decide—those that i can understand. truth be told, many of us can claim an affinity or knowledge of first amendment cases involving speech or religion, but the supremes strut their stuff on a significant number of issues that are intellectually as thick as mud.
today’s handdown is stuff closer to home. agent mcclacho picked up on the Grutter and Gratz affirmative action cases—before i knew they were even out! of interest to my many librarian friends might be United States v. American Library Association, Inc., 539 U.S.—(2003).
a few years back a bunch of congresspersons decided kids might be able to look at porn at libraries, or be exposed to it somehow. they passed a law that made libraries adopt blocking technologies to filter out xxx content. the problem is—and this is why the librarians sued—there’s some important stuff that gets filtered out. important stuff filtered out is called an “overblock” and stuff that’s missed is called an “underblock.” the argument? that overblocking will reduce “the adult population . . . to reading only what is fit for children.” (Stevens, J., dissenting).
the best argument was made by the district court that was reversed—in a great opinion that really looked at the meat of the problem, as opposed to the supremes’ focus on the abstract:
[T]he search engines that software companies use for harvesting are able to search text only, not images. This is of critical importance, because CIPA, by its own terms, covers only ‘visual depictions.’ Image recognition technology is immature, ineffective, and unlikely to improve substantially in the near future. None of the filtering software companies deposed in this case employs image recognition technology when harvesting or categorizing URLs. Due to the reliance on automated text analysis and the absence of image recognition technology, a Web page with sexually explicit images and no text cannot be harvested using a search engine. This problem is complicated by the fact that Web site publishers may use image files rather than text to represent words, i.e., they may use a file that computers understand to be a picture, like a photograph of a printed word, rather than regular text, making automated review of their textual content impossible. For example, if the Playboy Web site displays its name using a logo rather than regular text, a search engine would not see or recognize the Playboy name in that logo [and thus not block the site].
American Library Ass’n, Inc. v. U.S., 201 F.Supp. 2d 401, 431-32 (E.D. Pa. 2002) (citation omitted and emphasis added).
it’s interesting to see what happens when law runs smack-dab into technology. often i feel that the courts, bound by tradition and caselaw, may just not be prepared to suss out the problems—just as congress might not be, either. i believe the answer is always to maximize our freedom instead of legislating or judging around concepts that are nebulous and fluid to begin with—as the internet is especially.
make no mistake, ALA was made law with a four-person plurality. two of the three decisions handed down today were pluralities: that is, no one position had a clear majority, but the law will be shaped adopted in accordance with the opinion with the largest number of votes. if you didn’t think that the 2004 presidential race was important before, you should now: our next president will change the way we live our lives.
it should also be noted that c.j. rehnquist may be trying to shore up his somewhat-bizarre legacy. he wrote two of the three cases handed down today, which is quite a bit of work—even for a chief justice.
Here’s a good article re: UM@AA.
http://chronicle.com/free/2003/06/2003062305n.htm
wow! that little flash map is really cool. i’m impressed.
a very succinct version of ALA by findlaw.com says:
Public libraries’ use of internet filtering software does not violate their patrons’ First Amendment rights, thus the Children’s
Internet Protection Act (CIPA) does not induce libraries to violate the Constitution. CIPA does not impose an unconstitutional condition on libraries receiving federal funding.
As a librarian, here’s my $0.02:
The day that computers can actually, honestly make distinctions regarding internet text on a level comparable to that of the distinction-making abilities of an average human, then filtering software will be okay. Until then, filters are a bad idea.
Of course, kids should NOT be exposed to obsenity. Honestly, neither should adults, but as an information professional, it’s my job to provide ACCESS to information, not censor information. (That’s the Bush Administration’s job.) I know this ruling says the filters implemented should be as such that they can be disabled for patrons who ask. I DON’T have time to be disabling and reinstalling filters all damned day. It’s bad enough that people think librarians only shelve books all day; now the federal government seems to think we have time to be babysitters too. I’m moving to Canada.
haw haw, get ‘em, t/z! here’s the secret behind the ruling, no matter how much me & the aclu squall about it:
it doesn’t matter at all.
we all know filtering doesn’t work, eh? we’ve got a filter at my (baptist) school, although not on the computers in my office (i told them i would burn the school down if they put them on there). the only thing i found blocked was “masturbateforpeace.com” (which i truly doubt is “adult content,” but what the hey).
no breast cancer sites or family planning stuff was blocked. and there was PLENTY of porn we found in about ten minutes. in fact, if you’re wondering—and wanting a laff—check out mississippicollege.com. um, but not at work.
so what the supremes did yesterday was NOT ACTUALLY inhibit “real” freedom—but they did land a blow against our abstract rights, something justices rehnquist and co. are all-too-good at. in the world of constitutional law, each measured phrase and verb might be used twenty or fifty years later to devastating effect.
so while i’m (abstractly) disappointed, and i feel for my librarian friends, i don’t think it will really matter.
one thing they often do—and where this particular salvo lands—is limit our freedom (religious, speech, or otherwise) in attempting to “protect” children. i think that’s laudable, if often misplaced.
i haven’t finished all the opinions yet, but the concurrence’s hopeful “adult patrons can ask to have the filters turned off” feels bogus: “um, ma’am? can you turn off the, ahem, porn filter?” unlikely.
they don’t call me agent for nothin’.
D., i’ve got some info. you might be interested in. I’ll sent you the attachments through email.
well, maybe not. I’m having problems with it.